96-23532. Protection of Historic Properties  

  • [Federal Register Volume 61, Number 179 (Friday, September 13, 1996)]
    [Proposed Rules]
    [Pages 48580-48594]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-23532]
    
    
          
    
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    _______________________________________________________________________
    
    Part VI
    
    
    
    
    
    Advisory Council on Historic Preservation
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    36 CFR Part 800
    
    
    
    Protection of Historic Properties; Proposed Rule
    
    Federal Register / Vol. 61, No. 179 / Friday, September 13, 1996 / 
    Proposed Rules
    
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    ADVISORY COUNCIL ON HISTORIC PRESERVATION
    
    36 CFR Part 800
    
    
    Protection of Historic Properties
    
    AGENCY: Advisory Council on Historic Preservation.
    
    ACTION: Notice of proposed rulemaking.
    
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    SUMMARY: The Advisory Council on Historic Preservation is proposing 
    changes to its regulations in order to implement the 1992 amendments to 
    the National Historic Preservation Act and to improve and streamline 
    the regulations in accordance with the Administration's reinventing 
    government initiatives. The proposed changes will modify the process by 
    which Federal agencies consider the effects of their undertakings on 
    historic properties. On October 3, 1994, the Council published for 
    comment in the Federal Register a notice of proposed rulemaking that 
    set forth changes to the Section 106 process. After reviewing the 
    comments on the October 1994 proposal and in response to agency 
    downsizing and restructuring, the Council substantially changed its 
    proposal to better meet the streamlining goals of the Council. 
    Therefore, the Council is publishing a new notice of proposed 
    rulemaking. In its streamlined proposal, the Council seeks to balance 
    the interests and concerns of various users of the Section 106 process, 
    including Federal agencies, State Historic Preservation Officers 
    (SHPOs), Native Americans and Native Hawaiians, industry and the 
    public.
    
    DATES: Comments must be received on or before November 12, 1996. The 
    Council will provide on request an additional 30 days for an Indian 
    tribe to submit comments. A representative of the tribal government 
    must file a request with the Council no later than November 12, 1996.
    
    ADDRESSES: Comments should be addressed to the Executive Director, 
    Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, 
    Suite 809, Washington, D.C. 20004. Fax 202- 606-8672. Comments may be 
    submitted via E-Mail to achp@achp.gov.
    
    FOR FURTHER INFORMATION CONTACT: Stephanie Woronowicz, Information 
    Assistant, Advisory Council on Historic Preservation, 1100 Pennsylvania 
    Avenue, Suite 809, Washington, D.C. 20004 (202) 606-8503.
    
    SUPPLEMENTARY INFORMATION:
    
    I. Background
    
        Section 106 of the National Historic Preservation Act of 1966, as 
    amended, 16 U.S.C. 470f, requires Federal agencies to take into account 
    the effect of their undertakings on properties included in or eligible 
    for inclusion in the National Register of Historic Places and to afford 
    the Council a reasonable opportunity to comment on such undertakings. 
    Public Law 102-575 was enacted in October 1992, and contains amendments 
    to the National Historic Preservation Act which affect the way Section 
    106 review is carried out under the Council's regulations. 
    Additionally, as part of the Administration's National Performance 
    Review and overall streamlining efforts, the Council undertook a review 
    of the current regulatory process to identify potential changes that 
    could improve the operation of the Section 106 process and conform it 
    to the principles of this Administration. The Council commenced an 
    information-gathering effort to assess the current Section 106 process 
    and to identify desirable changes.
        As a part of this effort, the Council sent a questionnaire to 1,200 
    users of the Section 106 process, including Federal agencies, SHPOs, 
    State and local governments, applicants for Federal assistance, Native 
    Americans, preservation groups, contractors involved in the process, 
    and members of the public. The questionnaires sought opinions on the 
    current regulatory process and ideas for enhancing the process. The 
    Council received over 400 responses. After analyzing the responses and 
    holding several meetings with Federal Preservation Officers and SHPOs, 
    the Council staff presented its preliminary findings to a special 
    Council member Task Force comprised of the Department of 
    Transportation, the National Conference of State Historic Preservation 
    Officers, the National Trust for Historic Preservation, and the 
    Council's Native American representative, expert member and chairman.
        The Task Force adopted the following findings and attempted to 
    craft the regulations to reflect them: (1) Federal agencies and SHPOs 
    should be given greater authority to conclude Section 106 review; (2) 
    the Council should spend more time monitoring program trends and 
    overall performance of Federal agencies and SHPOs and less time 
    reviewing individual cases or participating in case-specific 
    consultation; (3) Section 106 review requirements should be integrated 
    with environmental review required by other statutes; (4) enforcement 
    of Section 106 should be increased and specific remedies should be 
    provided for failure to comply; and (5) there should be expanded 
    opportunities for public involvement in the Section 106 process.
        In the proposed regulations published in the Federal Register on 
    October 3, 1994, the Council sought to meet the stated findings and 
    objectives adopted by the Task Force. The Council received 
    approximately 370 comments on the October 1994 proposal. Generally, 
    commenters supported the overall goals and direction adopted by the 
    Task Force, but found that the proposed regulations failed to implement 
    the stated goals. Particularly, many commenters disagreed with the role 
    of the Council as arbiter of disputes over application of the 
    regulations, the public appeals process, and provisions dealing with 
    enforcement. At a Council membership meeting in February 1995, the 
    Council decided to continue its dialogue with major user groups of the 
    Section 106 process in an effort to resolve their concerns. The Council 
    membership also reaffirmed the objective of reducing regulatory burdens 
    on Federal agencies and SHPOs and focussing the review process on 
    important historic preservation issues. The Council solicited the views 
    of users of the Section 106 process once again by convening separate 
    focus groups with local governments, industry representatives, Native 
    Americans, and Federal agency officials in May 1995. As a result of 
    these meetings, and after considering the views of commenters, the 
    Council drafted a substantially revised proposal and circulated the 
    draft informally in July 1995 to the 370 commenters who had commented 
    on the October 1994 notice of proposed rulemaking.
        The Council received approximately 80 comments on the informally 
    distributed draft. Generally, the commenters found the July 1995 draft 
    to be an improvement on the October 1994 proposal. Again, however, 
    Federal agencies noted that the Council did not go far enough in 
    removing itself from routine cases and in bringing finality to the 
    process. Federal agencies also remained concerned that the public 
    participation provisions were too open-ended and inadequately defined 
    the roles and rights of participants in the process. Federal agencies 
    also considered the (National Environmental Policy Act (NEPA) 
    integration section to be a step forward, but submitted that its 
    substitution provisions should be extended to environmental assessments 
    as well as environmental impact statements and, overall, could provide
    
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    better integration of NHPA and NEPA. In contrast, the majority of SHPOs 
    did not want the Council to remove itself further from the Section 106 
    process and did not want the NEPA integration section to be extended to 
    environmental assessments. The National Conference of State Historic 
    Preservation Officers, as well as many of its member SHPOs, supported 
    the public participation process as set forth in the July 1995 draft, 
    but sought clarification on the roles and responsibilities of Federal 
    agencies under Section 106. Industry commenters deemed the July 1995 a 
    vast improvement over the 1994 proposal, however, they remained 
    concerned with the appeals procedures and found the process too 
    burdensome. Industry also remained concerned about the public 
    participation provisions. The current proposal is an attempt to balance 
    the many views of the Section 106 users on how to achieve the Task 
    Force's goals while fulfilling the Council's mission of ensuring 
    reasonable consideration of historic properties in agency decision-
    making.
    
    II. Summary of Regulatory Changes
    
        The proposed regulations would significantly modify the current 
    Section 106 process. The regulations provide a greater opportunity for 
    Federal agencies to resolve historic preservation issues with the SHPO 
    and other involved parties, without direct Council involvement. As a 
    result, the proposed regulations redefine the role of the Council to 
    involve the Council in controversial cases where the Council's unique 
    perspective and expertise can facilitate effective solutions. The 
    proposed regulations also provide new flexible methods of obtaining 
    Council comment on certain undertakings or effects.
    
    Subpart A--Background and Policy
    
        This Subpart adds a section which describes the three methods of 
    complying with Section 106: alternate procedures, exemptions or 
    programmatic agreements, and general procedures set forth in Subpart B. 
    As one of those methods, it encourages Federal agencies to meet their 
    Section 110 (a)(2)(E) requirements by developing their own alternate 
    procedures for compliance. This Subpart also modifies the description 
    of the participants in the Section 106 process and the roles of the 
    participants. Participants fall into three categories: principal 
    parties, consulting parties, and the public. Principal parties are 
    those with statutory responsibilities under Section 106: the Federal 
    agency official and the Council. Consulting parties are those with 
    consultative responsibilities under the Act: the SHPO and Indian tribes 
    and Native Hawaiian organizations. Affected parties are those with 
    direct legal or financial interests in the effects on undertaking on 
    historic properties: local governments and applicants for Federal 
    assistance or permission.. The public, under the proposed regulations, 
    includes the general public at large and the ``interested public.'' The 
    proposed regulations define the interested public to include 
    individuals and organizations that have indicated to the agency 
    official a particular interest in the effect of the undertaking. 
    Interested public includes owners of real property affected directly by 
    the undertaking, traditional cultural authorities, the SHPO when the 
    Indian tribe has assumed the function of the SHPO under Section 
    101(d)(2) of the Act and others that request to be treated as such.
    
    Subpart B--Section 106 Procedures
    
        This Subpart provides the standard general procedures for 
    compliance with the Act. It adds a new section which clarifies how a 
    Federal agency should initiate the 106 process in order to emphasize 
    the importance of early planning and coordination with reviews required 
    by other statutes. By emphasizing the importance of proper initiation 
    of the process, the Council seeks to address concerns regarding undue 
    delay in projects. The identification step at Section 800.4 has been 
    changed by adding two new concepts to enhance flexibility in the 
    regulations. First, when locating historic properties, the proposed 
    regulations provide that an agency must consider the scope and type of 
    identification necessary based on a variety of factors, including the 
    magnitude of the undertaking and its likely effects. It is intended 
    that Federal agencies will focus their identification efforts on those 
    portions of the area of potential effects most directly related to 
    their jurisdictional or financial control. Second, the proposed 
    regulations allow for ``phased identification'' to accommodate the 
    practice of choosing several alternatives in a project. As specific 
    aspects or locations of a project are determined, then the agency 
    official completes the identification.
        This Subpart also removes the separate ``effect'' determination 
    step and now proposes combining the ``no historic properties'' finding 
    and the ``no effect'' finding into a single ``no historic properties 
    affected'' finding requiring 15 days for SHPO review. The agency moves 
    directly to assessing adverse effects once it determines that historic 
    properties may be affected. The adverse effect criteria currently in 
    Section 800.9(b) have been revised to better define adverse effects and 
    have been moved to Section 800.5. The current exceptions to the 
    criteria have been transformed into ``standard treatments'' listed in 
    Section 800.5(a)(4) with the addition of a bridge replacement standard 
    treatment and a modification of the exception for archeological 
    resources that clarifies the basis for using the standard treatment and 
    ensures public dissemination of any resulting archeological studies. 
    The proposed regulations also remove the Council from review of no 
    adverse effect determinations and standard treatment agreements. The 
    amendments allow Federal agencies to conclude the Section 106 process 
    at this level without Council review, subject to specific requests for 
    Council review of agency findings under Section 800.9(a).
        The proposed regulations, in Section 800.6(a)(1), specify instances 
    when an agency official must request the Council to become involved in 
    the consultation to resolve adverse effects. The Council may or may not 
    participate after receiving such a request. The proposed regulations 
    provide that the Council may enter the consultation on its own 
    initiative if the Council determines it is necessary to ensure that the 
    purposes of Section 106 are met, i.e., that an agency is properly 
    taking into account the effects of the undertaking on historic 
    properties and affording the Council its reasonable opportunity to 
    comment. The proposed regulations, in 800.6(b)(1)(ii), also allow any 
    principal party to request Council involvement in the consultation. If 
    the Council does not participate in consultation, then the Council does 
    not review two-party agreements negotiated between the SHPO and the 
    Federal agency, but the regulations do require Federal agencies to file 
    copies of the agreement with the Council as a basis for general Council 
    oversight of agency compliance with Section 106. If the SHPO and the 
    agency cannot reach a solution, the proposed regulations require that 
    the Council join the consultation to attempt resolution before allowing 
    for termination of consultation and the provision of formal comments by 
    the Council membership. The proposed regulations provide that these 
    formal Council comments be considered by the head of the agency in 
    accordance with Section 110(l) of the Act.
        Subpart B provides a new section on coordination with the National 
    Environmental Policy Act (NEPA). It allows for the use of the NEPA 
    process and documentation for the preparation
    
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    of an environmental impact statement (EIS) and environmental assessment 
    (EA) to comply with Section 106 procedures as long as the draft EIS or 
    EA meets certain specific standards. The agency must submit the EA or 
    draft EIS to the Council, the SHPO, other consulting parties, and the 
    interested public during the public comment period and any agreed upon 
    mitigation measures must be incorporated in the record of decision. The 
    purpose of this section is to encourage the integration of the 
    resolution of adverse effects on historic properties into agency NEPA 
    compliance.
        The proposed regulations also clarify in Section 800.9 the process 
    for assessing certain agency findings under Sections 800.4 and 800.5. 
    Such requests may only be made by the SHPO, another consulting party or 
    a member of the interested public that has participated in the Section 
    106 process and must be made before the undertaking is approved by the 
    agency. The proposed regulations also provide strict time limits for 
    the Council to act on the request and provide its views to the agency 
    official. The Council may request the agency official to delay final 
    action for up to 30 days while the Council considers the matter, but 
    the agency official is not required to do so.
        In shifting the emphasis from Council review of individual cases to 
    assessing the overall quality of Federal agency or SHPO performance, 
    the proposed regulations add a provision that requires agencies to 
    maintain documentation of actions taken in compliance with Section 106 
    and to provide the Council with such information upon Council request.
        Section 800.10 addresses special requirements for National Historic 
    Landmarks and remains unchanged for the most part.
        Documentation standards have been clarified to provide general 
    requirements regarding adequacy, format and confidentiality in Section 
    800.11(a)-(c). Sections 800.11(d)-(h) remain largely unchanged from the 
    current 800.8(a)-(d) except that a new documentation requirement has 
    been added for a finding of no historic properties present or affected.
        In order to comply with the 1992 amendments which mandated 
    participation of Indian tribes and Native Hawaiian organizations, the 
    Council added a new section in 800.12 on involving Indian tribes and 
    Native Hawaiians in the consultation process. This section sets forth 
    specific requirements for involvement at each step of the Section 106 
    process and is designed to facilitate participation and agency planning 
    for involvement.
        Section 800.13 changes the Council's current emergency procedures 
    contained in 800.12 by encouraging agencies to develop internal 
    procedures, in consultation with the Council and the SHPO, which 
    address how historic properties will be considered during emergencies. 
    If an agency has not developed such procedures, the regulations 
    encourage agencies to develop programmatic agreements that include 
    provisions for dealing with historic properties during emergencies. If 
    there is no applicable programmatic agreement, then the agency shall 
    give the Council seven days to comment prior to the undertaking where 
    the agency determines circumstances permit.
        Section 800.14 is similar to the current Section 800.11 which 
    addresses post review discoveries except that it adds the requirement 
    that agencies must make reasonable efforts to avoid or minimize adverse 
    effects on unplanned-for discoveries.
    
    Subpart C--Program Alternatives
    
        This Subpart provides new options for agencies to pursue in 
    streamlining their Section 106 compliance activities and incorporates 
    the current practice of developing Programmatic Agreements to 
    facilitate coordination between Section 106 and an agency's particular 
    program.
        Section 800.15 provides five alternative methods of fulfilling 
    Section 106 responsibilities, instead of following the procedures set 
    forth in Subpart B. First, Section 800.15(a) states that Federal 
    agencies may develop procedures and, when they are determined to be 
    consistent with the Council's regulations, substitute them for 
    comparable portions of the Council's regulations. Second, Section 
    800.15(b) provides for the development of Programmatic Agreements to 
    govern particular agency programs or complex or multiple undertakings; 
    this section is substantively unchanged from the current programmatic 
    agreement section in 800.13 of the Council's regulations, but does 
    change minor standards and requirements in the development of such 
    agreements. Third, Section 800.15(c) allows for agencies to establish 
    exempted categories for undertakings that have foreseeable effects 
    which are not likely to be adverse. Fourth, Section 800.15(d) allows 
    the Council to offer a streamlined method of treating a category of 
    historic properties or a category of effects by allowing for standard 
    treatments. Finally, Section 800.15(e) provides an efficient mechanism 
    for fulfilling the requirement of seeking Council comment. This section 
    allows agencies to request Council comment on a category of routine or 
    repetitive undertakings instead of conducting individual reviews.
        The Council has reserved Section 800.16 to address state, tribal 
    and local program alternatives, but has deleted the current Section 
    800.7 on state agreements.
        Section 800.17 contains definitions. Several definitions have been 
    changed or deleted. ``Agency official'' has been deleted as redundant 
    in light of Section 800.2(a)(1). ``Approval of the expenditure of 
    funds'' has been added to clarify the triggering event for many Section 
    106 reviews. ``Area of potential effects'' has been changed in light of 
    the removal of the ``effect'' determination step in the process and is 
    now limited to the area where adverse effects may occur. ``Comment'' 
    and ``consultation'' and ``effect'' have been added for clarification. 
    ``Head of the agency'' has been added as a result of the 1992 
    amendments. ``Historic properties'' definition has been changed to 
    include properties of traditional religious and cultural importance to 
    Indian tribes or Native Hawaiian organizations that meet the National 
    Register criteria. ``Indian lands'' has been changed to ``tribal 
    lands'' and redefined as in the statute. ``Indian tribe'' is changed 
    and tracks the exact language in the statute. ``Interested person'' has 
    been deleted because that term is no longer used by the regulations. 
    ``Memorandum of Agreement'' has been added for clarification. ``Native 
    Hawaiian organization'' is added and tracks the statutory language. 
    ``Programmatic Agreement'' has been added for clarification. 
    ``Traditional cultural authority'' has been added because the 1992 
    amendments refer to the involvement of such groups. ``Tribal 
    Preservation Officer'' has been added because the 1992 amendments 
    provide a new role for such an officer. ``Undertaking'' has been 
    defined exactly as in the statute.
    
    III. Issues Deserving Special Attention From Commenters
    
    1. Public Participation
    
        The goal of the regulatory requirement that Federal agencies inform 
    and involve the public in the Section 106 process is to ensure that the 
    public has a reasonable opportunity to provide its views on a project. 
    The Council has attempted to give the public an adequate chance to 
    voice its concerns to Federal decision makers while recognizing 
    legitimate concerns about avoiding
    
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    unnecessary procedural burdens and delays and protecting the privacy of 
    non-governmental parties involved in the Section 106 process. How can 
    the regulations be enhanced to provide for meaningful public 
    involvement in a timely and effective fashion?
    
    2. Local Governments
    
        Several agencies seek an enhanced role for certified local 
    governments in the Section 106 process and find that the regulations do 
    not go far enough in providing for their involvement. The definition of 
    ``Head of the agency'' provides that the head of a local government 
    shall be considered the head of the agency where it has been delegated 
    responsibility for Section 106 compliance. How can we better 
    incorporate local governments into the process without confusing the 
    regulations?
    
    3. Council Involvement
    
        In this proposal, the Council has removed itself from review of no 
    adverse effect determinations and routine Memoranda of Agreement with 
    the intent of deferring to agency-SHPO decision making as a general 
    rule. At the same time, as the Federal agency assigned to review the 
    policies and programs of Federal agencies on historic preservation 
    matters, the Council has retained the right to enter the consultative 
    process on its own motion or when asked requested by the Agency 
    Official. The regulations set forth in 800.6 several criteria which 
    indicate when an Agency Official must invite the Council to become 
    involved in the consultation. They also set a general standard for when 
    the Council will enter the process without a request. The Council 
    intends on exercising its right to enter the process sparingly. Are the 
    criteria set forth in 800.6(a)(1)(i) workable? Can the regulations 
    better define when the Council will intervene on its own initiative?
    
    4. Council Review of Agency Findings
    
        Section 800.9 provides for Council review of agency findings where 
    the Council has not participated in the consultative process pursuant 
    to 800.6. The Council's right to review agency findings is limited to 
    whether the agency followed the appropriate procedures when making an 
    eligibility determination under 800.4(c)(2), a no historic properties 
    present or affected finding under 800.4(d), or a no adverse effect 
    finding or resolution by standard treatment under 800.5(c). The right 
    to review is also limited by the requirement that the request be made 
    prior to the agency approval of the expenditure of funds or the 
    issuance of a license, permit or other approval. The Council has 10 
    days to decide if the request warrants Council review and 30 days to 
    decide the merits of the case. The Council finds that the above review 
    process strikes a balance between allowing review of procedurally 
    deficient agency decisions and limiting review to situations that could 
    not have been corrected earlier in the process. Some Federal agencies 
    find that the review process in 800.9 provides the Council too much 
    authority to second guess agency decisions and promotes a lack of 
    finality to the process. How can the regulations accommodate the 
    Council's concerns and those of other Federal agencies?
    
    5. Time Frames
    
        Throughout the regulations, time frames are set for reviews 
    conducted by SHPOs and the Council. Generally, they allow thirty days 
    for responding to agency requests, although some are shorter. These 
    have been established in an effort to balance the need for an 
    expeditious process for Federal agencies and applicants with the 
    recognition of the need for adequate time to evaluate submissions (as 
    well as the limits on resources available in SHPO offices and at the 
    Council to respond within the specified time). Do the time frames 
    achieve this balance or should specific ones be increased or decreased?
    
    6. Alternate Procedures
    
        The proposed regulations allow Federal agencies to substitute their 
    own procedures for those contained in subpart B. Section 110(a)(2)(E) 
    of the Act requires that procedures implementing Section 106, including 
    these substitute procedures, be consistent with the Council's 
    regulations. The proposed regulations charge the Secretary with making 
    final determinations on consistency. This is based on the Secretary's 
    primary responsibility for implementing Section 110. Alternatively, the 
    Council, as the agency charged by Section 211 of the Act with issuing 
    the regulations to guide implementation of Section 106, could make such 
    a determination. A third option is allowing the Federal agency itself 
    to make a determination of consistency. Is the proposed approach the 
    best solution?
    
    IV. Impact Analysis
    
    Regulatory Flexibility Act
    
        The proposed rules will not have a significant economic impact on a 
    substantial number of small entities. The Council's regulations, in 
    their current and revised form, only impose mandatory obligations on 
    Federal agencies. If a Federal agency is legally authorized and chooses 
    to delegate its responsibility to local governments, then that Federal 
    agency must determine whether or not its delegation will have a 
    significant economic impact on a substantial number of small entities.
    
    The Paperwork Reduction Act
    
        The proposed regulations do not impose reporting requirements or 
    the collection of information as defined in the Paperwork Reduction 
    Act.
    
    National Environmental Policy Act
    
        Pursuant to 36 CFR Part 805, the Council is developing a draft 
    Environmental Assessment and will complete the NEPA evaluation prior to 
    publication of its final rule.
    
    Executive Orders 12866 and 12875
    
        The Council is exempt from compliance with Executive Orders 12866 
    pursuant to a memorandum issued by the Office of Management and 
    Budget's Office of Information and Regulatory Affairs on October 12, 
    1993. The Council is also exempt from the documentation requirements of 
    Executive Order 12875 pursuant to a memorandum issued by the same 
    office on January 11, 1994. Although the Council is exempt, it has 
    adhered to the principles in both orders by involving State, local and 
    tribal entities, members of the public, and industry groups in the 
    development of the proposed regulations as discussed above in the 
    Background section of this preamble. The proposed regulations, like the 
    current regulations, do not mandate State, local and tribal governments 
    to participate in the Section 106 process. The State, local and tribal 
    governments have the option of declining to participate, although the 
    State Historic Preservation Officers are required to advise and assist 
    Federal agencies, as appropriate, as part of their duties under Section 
    101(b)(3)(E) of the National Historic Preservation Act and as a 
    condition of their Federal grant assistance. In accordance with 
    Executive Order 12875, the proposed regulations provide flexible 
    approaches to consideration of historic properties in Federal agency 
    decision making by allowing for categorical exemptions, standard 
    treatments, program comments, and programmatic agreements in Section 
    800.15 of the proposed regulations.
    
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    Unfunded Mandates Reform Act of 1995
    
        The Council has determined that its regulations do not fall within 
    the definition of a Federal mandate as defined in Section 421(6) of the 
    Unfunded Mandates Reform Act of 1995.
    
    Executive Order 12898
    
        The regulations implementing Section 106 do not pose environmental 
    risks, but rather, seek to avoid adverse effects on historic properties 
    in all areas of the United States.
    
    Memorandum Concerning Government-to-Government Relations with Native 
    American Tribal Governments
    
        The Council has fully complied with this Memorandum. A Native 
    American representative served on the Council and was a member of the 
    Council's Regulations Task Force. The proposed regulations enhance the 
    opportunity for Native American involvement in the Section 106 process 
    and clarify the obligation of Federal agencies to consult with Native 
    Americans.
    
    List of Subjects in 36 CFR Part 800
    
        Administrative practice and procedure, Historic preservation, 
    Indians, Inter-governmental relations.
    
        Dated: September 10, 1996.
    Robert D. Bush,
    Executive Director.
    
        Title 36, chapter VIII is amended by revising part 800 to read as 
    follows:
    
    PART 800--PROTECTION OF HISTORIC AND CULTURAL PROPERTIES
    
    Subpart A--Purposes and Participants
    
    Sec.
    800.1  Purposes.
    800.2  Participants in the Section 106 process.
    
    Subpart B--Section 106 Procedures
    
    800.3  Initiation of the Section 106 process.
    800.4  Identification of historic properties.
    800.5  Assessment of adverse effects.
    800.6  Resolution of adverse effects.
    800.7  Failure to resolve adverse effects.
    800.8  Coordination with the National Environmental Policy Act.
    800.9  Council review of Section 106 compliance.
    800.10  Special requirements for protecting National Historic 
    Landmarks.
    800.11  Documentation standards.
    800.12  Consultation with Indian tribes and Native Hawaiian 
    organizations.
    800.13  Emergency situations.
    800.14  Post-review discoveries.
    
    Subpart C--Program Alternatives
    
    800.15  Federal agency program alternatives.
    800.16  State, Tribal and Local Program Alternatives. (Reserved)
    800.17  Definitions.
    
    Subpart A--Purposes and Participants
    
    
    Sec. 800.1  Purposes.
    
        (a) Purposes of the Section 106 process. Section 106 of the 
    National Historic Preservation Act requires Federal agencies to take 
    into account the effects of their undertakings on historic properties 
    and afford the Council a reasonable opportunity to comment on such 
    undertakings. The procedures in this part define how Federal agencies 
    meet these statutory responsibilities. The Section 106 process seeks to 
    accommodate historic preservation concerns with the needs of Federal 
    undertakings through consultation between the Agency Official and other 
    parties with an interest in the effects of the undertaking on historic 
    properties, commencing at the early stages of project planning. The 
    goal of consultation is to avoid or minimize adverse effects on 
    historic properties.
        (b) Relation to other provisions of the Act. Section 106 is one of 
    several provisions of the Act designed to further the national policy 
    of historic preservation. References to those related provisions are 
    included in the procedures in this part to identify circumstances where 
    actions under the procedures in this part may be affected by the 
    independent obligations of those other provisions. Such provisions may 
    have their own implementing regulations or guidelines and are not 
    intended to be implemented by the procedures in this part. Guidelines, 
    policies and procedures issued by other agencies, including the 
    Secretary, have been cited in the procedures in this part for ease of 
    access and are not incorporated by reference.
        (c) Methods of complying with section 106 of the Act. The 
    procedures in this part provide several methods for Federal agencies to 
    meet their Section 106 responsibilities.
        (1) Alternate procedures. Section 110(a)(2)(E) of the Act directs 
    Federal agencies to develop procedures for implementing section 106 of 
    the Act that are consistent with the Council's regulations and meet 
    standards specified in the Act. The Council encourages Federal agencies 
    to adopt such procedures and, where appropriate, substitute them for 
    the procedures in subpart B of this part in accordance with 
    Sec. 800.15(a).
        (2) Exemptions and programmatic agreements. If a Federal agency 
    does not have alternate procedures in place, it should consider the use 
    of exemptions (Sec. 800.15(c)) and programmatic agreements 
    (Sec. 800.15(b)) to tailor Section 106 compliance to its program needs.
        (3) General procedure. If a Federal agency has not adopted 
    alternate procedures and the undertaking is not exempted or governed by 
    a programmatic agreement, the Agency Official shall comply with the 
    process set forth in subpart B of this part.
        (d) Timing. Section 106 of the Act requires the Agency Official to 
    complete the section 106 process prior to the approval of the 
    expenditure of funds or prior to the issuance of any license, permit or 
    other approval. An Agency Official may expend funds on, or authorize, 
    nondestructive project planning activities, including field 
    investigations, before completing compliance with section 106 of the 
    Act, and may conduct phased compliance with the procedures in subpart B 
    of this part at different stages of planning, provided that such 
    actions do not restrict the subsequent consideration of alternatives to 
    avoid or minimize the undertaking's adverse effects on historic 
    properties. The Agency Official shall ensure that the section 106 
    process is initiated early in the undertaking's planning, so that a 
    broad range of alternatives may be considered.
    
    
    Sec. 800.2  Participants in the section 106 process.
    
        (a) Principal parties. The following parties have statutory 
    responsibilities in the section 106 process:
        (1) Agency Official. It is the legal obligation of the Federal 
    agency to fulfill the requirements of section 106 of this Act and to 
    ensure that an Agency Official with jurisdiction over an undertaking 
    takes legal and financial responsibility for section 106 compliance in 
    accordance with subpart B of this part. The Agency Official has final 
    approval authority for the undertaking and may be a State, local, or 
    tribal government official who has been delegated legal responsibility 
    for compliance with section 106 of the Act in accordance with law or 
    agency procedures established under section 110(a)(2)(E) of the Act.
        (i) Section 112 of the Act requires each Federal agency to ensure 
    that all actions taken by employees or contractors of the agency shall 
    meet professional standards under applicable regulations of the 
    Secretary and that agency personnel and contractors responsible for 
    historic resources meet applicable qualification standards
    
    [[Page 48585]]
    
    established by the Office of Personnel Management.
        (ii) If more than one Federal agency is involved in an undertaking, 
    the agencies may designate a lead Federal agency. The lead Federal 
    agency shall identify the appropriate official to serve as the Agency 
    Official. Such Agency Official shall act on behalf of all participating 
    Federal agencies, fulfilling their collective responsibilities under 
    section 106 of the Act and subpart B of this subpart.
        (2) Council. The Council is responsible for issuing regulations to 
    implement section 106, provides guidance and advice on the application 
    of the procedures in this part, and generally oversees the operation of 
    the section 106 process. The Council also consults with and comments to 
    Agency Officials on undertakings that affect historic properties and 
    assists participants in meeting their legal obligations. Participants 
    in the section 106 process may seek advice and guidance from the 
    Council on the application of this part to specific undertakings even 
    though the Council is not formally involved in the review of the 
    undertaking.
        (b) Consulting parties. The following parties have consultative 
    roles in the section 106 process as defined in the Act.
        (1) State Historic Preservation Officer. The State Historic 
    Preservation Officer advises and assists Federal agencies in carrying 
    out their historic preservation responsibilities and consults with 
    Federal agencies on undertakings that affect historic properties and on 
    the content and sufficiency of plans to protect, manage or mitigate 
    harm to historic properties. If an Indian tribe has assumed the 
    functions of the State Historic Preservation Officer for the section 
    106 process on tribal lands, the State Historic Preservation Officer 
    shall participate in accordance with any plan referenced in 
    Sec. 800.2(b)(2) and may also participate as a member of the interested 
    public. The role of the State Historic Preservation Officer with regard 
    to effects on historic properties located off tribal lands is 
    unchanged.
        (2) Indian tribes and Native Hawaiian organizations. The Agency 
    Official is required to consult with any Indian tribe or Native 
    Hawaiian organization that attaches religious and cultural significance 
    to historic properties that may be affected by an undertaking. To meet 
    this responsibility, the Agency Official shall identify Indian tribes 
    and Native Hawaiian organizations likely to have such interests in 
    accordance with Sec. 800.3(e) and consult with them in accordance with 
    Sec. 800.12 to ensure that their views are fully considered by the 
    Agency Official in reaching findings and decisions in the section 106 
    process. An Indian tribe may assume the functions of a State Historic 
    Preservation Officer in the section 106 process with respect to tribal 
    lands under section 101(d)(2) of the Act. If so, the Agency Official 
    shall consult with the Tribal Preservation Officer in accordance with 
    the plan prepared pursuant to that section regarding the effects of 
    undertakings on tribal lands.
        (c) Affected parties. The following parties have direct legal or 
    financial interests in the effects of an undertaking on historic 
    properties and may participate in the section 106 process as consulting 
    parties when they so request.
        (1) Representatives of local governments. If a representative of a 
    local government with jurisdiction over the area in which the effects 
    of an undertaking may occur so requests, the Agency Official shall 
    involve the local government as a consulting party. Under certain 
    authorities, the local government may be authorized to act as the 
    Agency Official for purposes of section 106 of the Act.
        (2) Applicants for Federal assistance, permits, licenses and other 
    approvals. If an applicant for Federal assistance or permission so 
    requests, the Agency Official shall involve the applicant as a 
    consulting party. The Agency Official may authorize an applicant to 
    initiate consultation with the State Historic Preservation Officer and 
    others under Secs. 800.3 and 800.4, but remains legally responsible for 
    all findings charged to the Agency Official. Where not inconsistent 
    with the rights of the public to access the information that is the 
    basis for the Agency Official's decisions under the procedures in this 
    part, the Agency Official may take reasonable steps to protect the 
    privacy of non-governmental applicants in accordance with applicable 
    agency procedures.
        (d) The public. The views of the public are essential to informed 
    Federal decisionmaking as to taking into account effects of 
    undertakings. The Act directs Federal agencies to consult with the 
    interested public, as appropriate, in steps taken to comply with 
    section 106 of the Act. The procedures in this part provide for 
    notification and involvement of the public in the section 106 process 
    and for the identification of and consultation with the interested 
    public as appropriate.
        (1) Responsibilities. The Agency Official is required at specific 
    points in the section 106 process to provide the public with 
    information about an undertaking and its effects on historic properties 
    and to seek public comment and input. Members of the public may also 
    provide views on their own initiative and the Agency Official should 
    consider those views in decisionmaking.
        (2) Flexible application. The Agency Official's efforts to seek and 
    consider the views of the public should reflect the nature and 
    complexity of the undertaking and its effects on historic properties, 
    the likely interest of the public in the effects on historic 
    properties, and the nature of the Federal involvement in the 
    undertaking. Evaluation of these factors for an individual undertaking 
    may warrant the Agency Official to apply the specific public 
    involvement requirements of subpart B of this part in a flexible 
    manner.
        (3) Use of agency procedures. The Agency Official may use the 
    agency's procedures for public involvement under the National 
    Environmental Policy Act or other program requirements, if they provide 
    adequate opportunities for public involvement consistent with the 
    procedures in subpart B of this part.
        (4) Interested public. The interested public includes those 
    individuals and organizations that have indicated to the Agency 
    Official an interest in the effects of an undertaking on historic 
    properties. Certain individuals and organizations may warrant direct 
    involvement in the consultations conducted by the Agency Official due 
    to the nature of their legal or economic relation to the undertaking or 
    affected properties, or due to their representation of citizens or 
    organizations concerned with the undertaking and its effects on 
    historic properties. The Agency Official is required to take steps to 
    identify the interested public and involve them at specific points in 
    the section 106 process. The interested public includes:
        (i) Owners of real property affected directly by the undertaking, 
    provided that the Agency Official may limit participation to 
    organizations representing such owners if necessary;
        (ii) Traditional cultural authorities with an interest in the 
    undertaking's effects on historic properties of traditional cultural 
    and religious importance;
        (iii) The State Historic Preservation Officer when an Indian tribe 
    has assumed the functions of the State Historic Preservation Officer 
    under section 101(d)(2) of the Act; and
        (iv) Other individuals, organizations or entities that request to 
    be treated as members of the interested public.
    
    [[Page 48586]]
    
    Subpart B--Section 106 Procedures
    
    
     Sec. 800.3  Initiation of the Section 106 process.
    
        (a) Establish undertaking. The Agency Official shall determine 
    whether the proposed Federal action is an undertaking and, if so, 
    whether it has the potential to affect historic properties and whether 
    review is governed by a Federal agency program alternative established 
    under Sec. 800.15.
        (1) If the action is not an undertaking or an undertaking that has 
    no potential to affect historic properties, the Agency Official has no 
    further obligations under section 106 of the Act.
        (2) If the review of the undertaking is governed by a Federal 
    agency program alternative, the Agency Official shall follow that 
    alternative.
        (b) Coordinate with other reviews. The Agency Official shall 
    coordinate the steps of the Section 106 process, as appropriate, with 
    the overall planning schedule for the undertaking and with any reviews 
    required under other authorities such as the National Environmental 
    Policy Act, the Native American Graves Protection and Repatriation Act, 
    the American Indian Religious Freedom Act, the Archeological Resources 
    Protection Act and agency specific legislation, such as section 303(f) 
    of the Department of Transportation Act. Where consistent with the 
    procedures in this subpart, the Agency Official may use information 
    developed for other reviews under Federal or State law to meet the 
    requirements of the section 106 process.
        (c) Plan to involve the public. The Agency Official shall begin 
    planning for involving the public in the Section 106 process, relating 
    the steps to be taken to the likely level and nature of public interest 
    in the undertaking and its effects on historic properties. The Agency 
    Official shall consider what individuals and organizations may have an 
    interest in the undertaking and its effects on historic properties and 
    plan to involve them in the Section 106 process as members of the 
    interested public. The Agency Official should give special attention to 
    identifying those members of the interested public who should be 
    consulted as the section 106 process proceeds and involve them as 
    appropriate.
        (d) Initiate consultation with the State Historic Preservation 
    Officer. The Agency Official shall determine the appropriate State 
    Historic Preservation Officer or Officers to be involved in the section 
    106 process and initiate consultation.
        (1) If the State Historic Preservation Officer declines in writing 
    to participate in the Section 106 process or fails to respond in a 
    timely manner at any point in these procedures, the Agency Official 
    shall consult with the Council to complete the Section 106 process 
    without the State Historic Preservation Officer.
        (2) If more than one State is involved in an undertaking, the 
    involved State Historic Preservation Officers may designate a lead 
    State Historic Preservation Officer to act on behalf of all 
    participating State Historic Preservation Officers in the Section 106 
    process.
        (3) Requirements for consultation with the State Historic 
    Preservation Officer should be implemented in a manner appropriate to 
    the agency planning process for the undertaking and the nature and 
    effect of the undertaking on historic properties. A single consultation 
    by the Agency Official with the State Historic Preservation Officer may 
    address multiple steps in the Section 106 process where it is 
    consistent with the purposes of the procedures in this part.
        (e) Identify consulting parties. The Agency Official shall 
    determine whether there are any local governments or applicants that 
    are entitled to be involved in consultations conducted under this 
    subpart and plan to involve them as appropriate. The Agency Official 
    shall identify the Indian tribes or Native Hawaiian organizations that 
    might attach religious and cultural significance to historic properties 
    in the area of potential effects and plan for their participation in 
    accordance with Sec. 800.12 .
    
    
    Sec. 800.4  Identification of historic properties.
    
        (a) Determine scope of identification efforts. At the earliest 
    feasible stage in planning an undertaking and coordinated with any 
    steps being taken to meet the requirements of the National 
    Environmental Policy Act, the Agency Official shall consult with the 
    State Historic Preservation Officer and:
        (1) Determine the area of potential effects;
        (2) Review existing information on historic properties within the 
    area of potential effects, including any data concerning possible 
    historic properties not yet identified; and
        (3) Seek information from individuals and organizations likely to 
    have knowledge of, or concerns with, historic properties in the area 
    and identify issues relating to historic properties.
        (b) Identify historic properties. Based on the information gathered 
    under Sec. 800.4(a) and in consultation with the State Historic 
    Preservation Officer, the Agency Official shall take the steps 
    necessary to identify historic properties within the area of potential 
    effects.
        (1) Level of effort. The Agency Official, in consultation with the 
    State Historic Preservation Officer, shall make a reasonable and good 
    faith effort to carry out appropriate identification efforts. The 
    Agency Official shall determine the appropriate scope and type of 
    identification efforts, including background research, consultation, 
    sample field investigation, and field survey, taking into account past 
    planning or research studies and results, and based on the magnitude of 
    the undertaking, the nature and extent of its potential effects on 
    historic properties and the likely nature and location of historic 
    properties within the area of potential effects. The Secretary's 
    Standards and Guidelines for Identification provide guidance on this 
    subject.
        (2) Phased identification. Where alternative locations are under 
    consideration or access to properties is restricted, the Agency 
    Official may conduct identification efforts designed to establish the 
    likely presence of historic properties within the area of potential 
    effects for each alternative through background research, consultation 
    and an appropriate level of field investigation, taking into account 
    the number of alternatives under consideration and the magnitude of the 
    undertaking and likely effects. As specific aspects or location of a 
    preferred alternative are determined, the Agency Official shall 
    complete the identification of historic properties in accordance with 
    Sec. 800.4(b)(1).
        (3) Consistent with applicable conflict of interest laws, the 
    Agency Official may use the services of applicants, consultants, or 
    designees to prepare information and analyses under this subpart, but 
    remains legally responsible for all findings charged to the Agency 
    Official. If a document or study is prepared by a non-Federal party, 
    the Agency Official shall evaluate the document prior to its approval 
    and be responsible for its content.
        (c) Evaluate historic significance. (1) Apply National Register 
    Criteria. In consultation with the State Historic Preservation Officer, 
    guided by the Secretary's Standards and Guidelines for Evaluation and 
    with consideration for the potential of the proposed undertaking to 
    affect identified properties, the Agency Official shall apply the 
    National Register Criteria to properties identified within the area of 
    potential effects that have not been previously evaluated for National 
    Register eligibility. The passage of time, changing perceptions of 
    significance, or
    
    [[Page 48587]]
    
    incomplete prior evaluations may require reevaluation of properties 
    previously determined eligible or ineligible.
        (2) Determine whether a property is eligible. If the Agency 
    Official determines the criteria are met and the State Historic 
    Preservation Officer agrees, the property shall be considered eligible 
    for the National Register for Section 106 purposes. If the Agency 
    Official determines the criteria are not met and the State Historic 
    Preservation Officer agrees, the property shall be considered not 
    eligible. If the Agency Official and the State Historic Preservation 
    Officer do not agree, or if the Council or the Secretary so request, 
    the Agency Official shall obtain a determination of eligibility from 
    the Secretary pursuant to 36 CFR part 63.
        (d) Results of identification and evaluation. (1) No historic 
    properties present or affected. If the Agency Official finds that there 
    are no historic properties either present or that may be affected by 
    the undertaking, the Agency Official shall provide documentation of 
    this finding as set forth in Sec. 800.11(d) to the State Historic 
    Preservation Officer. The Agency Official shall notify any consulting 
    party and the interested public and make the documentation available 
    for public inspection prior to approving the undertaking. If the State 
    Historic Preservation Officer does not object within 15 days of receipt 
    of an adequately documented finding, this completes the Agency 
    Official's responsibilities under section 106 of the Act.
        (2) Historic properties affected. If there are historic properties 
    that may be affected by the undertaking, the Agency Official shall 
    notify any consulting party and the interested public and assess 
    adverse effects in accordance with Sec. 800.5.
    
    
    Sec. 800.5  Assessment of adverse effects.
    
        (a) Apply criteria of adverse effect. In consultation with the 
    State Historic Preservation Officer, the Agency Official shall apply 
    the criteria of adverse effect to historic properties within the area 
    of potential effects. The Agency Official shall consider any views 
    concerning such effects provided by consulting parties, the interested 
    public and the public at large.
        (1) Criteria of adverse effect. An undertaking is considered to 
    have an adverse effect when it may alter the characteristics of a 
    historic property that qualify the property for inclusion in the 
    National Register in a manner that would diminish the integrity of the 
    property's location, design, setting, materials, workmanship, feeling, 
    or association. Adverse effects may include reasonably foreseeable 
    effects caused by the undertaking that are later in time or farther 
    removed in distance.
        (2) Examples of adverse effects. Adverse effects on historic 
    properties include, but are not limited to:
        (i) Physical destruction, damage, or alteration of all or part of 
    the property;
        (ii) Removal of the property from its historic location;
        (iii) Alteration of the character of the property's setting or use 
    when that character contributes to the property's qualification for the 
    National Register;
        (iv) Introduction of visual or audible elements that are out of 
    character with the property ;
        (v) Neglect of a property which causes its deterioration; and
        (vi) Transfer, lease, or sale of property out of Federal ownership 
    or control.
        (3) Avoidance of adverse effects. The Agency Official, in 
    consultation with the State Historic Preservation Officer, may make a 
    finding of no adverse effect when the Agency Official modifies the 
    undertaking to avoid adverse effects.
        (4) Standard treatment of potential adverse effects. The Agency 
    Official may find, in consultation with the State Historic Preservation 
    Officer, that certain adverse effects are satisfactorily resolved in 
    accordance with one of the following standard treatments:
        (i) The undertaking is limited to maintenance, repair, 
    rehabilitation, or restoration of buildings or structures, including 
    hazardous materials remediation or modifications for handicapped 
    access, and will be conducted in accordance with construction plans and 
    specifications that meet the Secretary's Standards for the Treatment of 
    Historic Properties and applicable guidelines and that are reviewed by 
    the State Historic Preservation Officer prior to implementation;
        (ii) The undertaking is limited to construction or ground 
    disturbance that would destroy, damage or alter an archaeological 
    property of value only for its contribution to knowledge of the past, 
    and a plan for studying the property with archeological methods, 
    collecting important information, and disseminating the results to the 
    public, or a plan for preserving the property for future study is 
    prepared and implemented in accordance with applicable professional 
    standards and guidelines;
        (iii) The undertaking is limited to the transfer, sale or lease of 
    a Federal historic property and adequate and legally enforceable 
    restrictions or conditions are included to ensure preservation of the 
    property's significant historic features;
        (iv) The undertaking is limited to the rehabilitation or 
    replacement of a bridge and, in accordance with a State inventory and 
    plan for historic bridges approved by the State Historic Preservation 
    Officer, specific measures are provided for recordation and marketing, 
    relocation or reuse of the bridge; or
        (v) The undertaking meets another standard treatment specified by 
    the Council under Sec. 800.15(d).
        (b) State Historic Preservation Officer review. If the Agency 
    Official makes either a finding of no adverse effect or that adverse 
    effects can be satisfactorily resolved by a standard treatment, the 
    Agency Official shall submit the finding with the documentation 
    specified in Sec. 800.11(e) to the State Historic Preservation Officer 
    for a 30-day review period.
        (1) Agreement with finding. If the State Historic Preservation 
    Officer agrees with the Agency Official's finding, the Agency Official 
    may proceed and shall carry out the undertaking in accordance with 
    Sec. 800.5(c)(1).
        (2) Disagreement with finding. If the State Historic Preservation 
    Officer disagrees within 30 days of receipt of the finding, the Agency 
    Official shall consider the effect adverse. The State Historic 
    Preservation Officer shall specify the reasons for disagreeing with the 
    finding. The Agency Official may request the Council to review the 
    disagreement and shall proceed in accordance with the Council's opinion 
    as to whether the effect is adverse.
        (c) Results of assessment. (1) Finding of no adverse effect or 
    resolution by standard treatment. The Agency Official shall maintain a 
    record of the finding, notify any participating local government or 
    applicant and the interested public, and make the record available for 
    public review before approving the undertaking. Implementation of the 
    undertaking in accordance with the finding as documented completes the 
    Agency Official responsibilities under Section 106 of the Act. If the 
    Agency Official fails to carry out the undertaking in accordance with 
    the finding, the Agency Official shall follow Sec. 800.6.
        (2) Adverse effect found. If an adverse effect is found and not 
    resolved by a standard resolution in accordance with this section, the 
    Agency Official shall consult further to resolve the adverse effect 
    pursuant to Sec. 800.6.
    
    [[Page 48588]]
    
    Sec. 800.6  Resolution of adverse effects.
    
        (a) Continue consultation. The Agency Official shall consult with 
    the State Historic Preservation Officer to develop and evaluate 
    alternatives or modifications to the undertaking to avoid or minimize 
    adverse effects on historic properties.
        (1) Determine Council involvement. The Agency Official shall 
    determine whether to request Council involvement in the consultation 
    and notify the Council by providing the documentation specified in 
    Sec. 800.11(f).
        (i) The Agency Official shall request the Council to become 
    involved in the consultation in accordance with Sec. 800.6(b)(2):
        (A) When the Agency Official determines that Council involvement 
    will facilitate resolution of adverse effects;
        (B) When the undertaking has an adverse effect upon a National 
    Historic Landmark or is to be carried out on tribal lands;
        (C) When a Programmatic Agreement under Sec. 800.15(b) is prepared; 
    or
        (D) When the State Historic Preservation Officer, an Indian Tribe, 
    a Native Hawaiian organization, a local government or an applicant 
    requests Council involvement.
        (ii) The Council shall advise the Agency Official of its decision 
    to participate within 15 days of receipt of notice. The Council may 
    enter the consultation on its own initiative when it determines that 
    Council involvement is necessary to ensure that the purposes of section 
    106 and the Act are met.
        (iii) If the criteria in Sec. 800.6(a)(1)(i) are not met or the 
    Council does not elect to join the consultation, the Agency Official 
    may complete consultation in accordance with Sec. 800.6(b)(1).
        (2) Involve consulting parties and the interested public. The 
    Agency Official shall involve consulting parties in the consultation as 
    determined under Sec. 800.3. When agreed to by the Agency Official, the 
    State Historic Preservation Officer and the Council, if participating, 
    members of the interested public may become consulting parties. If the 
    Agency Official and the State Historic Preservation Officer do not 
    agree, the Agency Official shall request the Council to decide. The 
    Agency Official shall involve any member of the interested public that 
    will assume a specific role or responsibility in a Memorandum of 
    Agreement.
        (3) Provide documentation. The Agency Official shall make available 
    to the State Historic Preservation Officer and other consulting parties 
    the documentation specified in Sec. 800.11(f) and such other 
    documentation as may be developed during the consultation to resolve 
    adverse effects.
        (4) Involve the public. The Agency Official shall make available 
    information to the public and provide an opportunity for members of the 
    public to express their views on resolving adverse effects of the 
    undertaking. The Agency Official shall use appropriate mechanisms, 
    taking into account the magnitude of the undertaking and the nature of 
    its effects upon historic properties, to ensure that the full range of 
    the public's views is represented in the consultation.
        (b) Resolve adverse effects. (1) Resolution without the Council. 
    (i) The Agency Official shall consult with the State Historic 
    Preservation Officer and other consulting parties to seek ways to avoid 
    or minimize the adverse effects.
        (ii) If during the consultation the Council decides to join the 
    consultation, the Agency Official shall continue the consultation in 
    accordance with Sec. 800.6(b)(2).
        (iii) If the Agency Official and the State Historic Preservation 
    Officer agree on how the adverse effects will be resolved, they shall 
    execute a Memorandum of Agreement. The Agency Official shall file a 
    copy of the executed Memorandum of Agreement with the Council prior to 
    approving the undertaking.
        (iv) If the Agency Official and the State Historic Preservation 
    Officer fail to agree on the terms of a Memorandum of Agreement, the 
    Agency Official shall request the Council to join the consultation and 
    proceed in accordance with Sec. 800.6(b)(2).
        (2) Resolution with Council participation. If the Council decides 
    to participate, the Agency Official shall consult with the State 
    Historic Preservation Officer, the Council, and other consulting 
    parties to avoid or minimize the adverse effects. If the Agency 
    Official, the State Historic Preservation Officer, and the Council 
    agree on how the adverse effects will be resolved, they shall execute a 
    Memorandum of Agreement.
        (c) Memorandum of Agreement. (1) Signatories. The Agency Official 
    and the State Historic Preservation Officer are the signatories to a 
    Memorandum of Agreement executed pursuant to Sec. 800.6(b)(1). The 
    Agency Official, the State Historic Preservation Officer, and the 
    Council are the signatories to a Memorandum of Agreement executed 
    pursuant to Sec. 800.6(b)(2). The signatories have sole authority to 
    execute, amend or terminate the agreement.
        (2) Concurrence by others. The signatories may agree to invite 
    others to concur in the Memorandum of Agreement. The Agency Official 
    shall invite any consulting parties to concur.
        (3) Reports on implementation. Where the signatories agree it is 
    appropriate, a Memorandum of Agreement shall include a provision for 
    monitoring and reporting on its implementation.
        (4) Duration. A Memorandum of Agreement shall include provisions 
    for termination and for reconsideration of terms if the undertaking has 
    not been implemented within a specified time.
        (5) Legal status. A Memorandum of Agreement executed pursuant to 
    this section evidences the Agency Official's compliance with Section 
    106 and this part and shall govern the undertaking and all of its 
    parts. The Agency Official shall ensure that the undertaking is carried 
    out in accordance with the Memorandum of Agreement.
        (6) Amendments. The signatories to a Memorandum of Agreement may 
    amend it. If the Council was not a signatory to the original agreement 
    and the signatories execute an amended agreement, the Agency Official 
    shall file it with the Council. Failure to agree on amendments leaves 
    the existing agreement in effect.
        (7) Termination. If any signatory determines that the terms of a 
    Memorandum of Agreement cannot be carried out, the signatories shall 
    consult to seek amendment of the agreement. If the agreement is not 
    amended, the Agency Official, the State Historic Preservation Officer, 
    or the Council if a signatory, may terminate it and the Agency Official 
    shall request the comments of the Council under Sec. 800.7(b).
    
    
    Sec. 800.7  Failure to resolve adverse effects.
    
        (a) Termination of consultation. After consulting to resolve 
    adverse effects pursuant to Sec. 800.6(b)(2), the Agency Official, the 
    State Historic Preservation Officer, or the Council may determine that 
    further consultation will not be productive and terminate consultation.
        (1) If the Agency Official terminates consultation, the head of the 
    agency or an Assistant Secretary or other officer with major 
    department-wide or agency-wide responsibilities shall request the 
    Council's comments, accompanied by the documentation in Sec. 800.11(h), 
    and notify the State Historic Preservation Officer, other consulting 
    parties and the interested public of the request.
        (2) If the State Historic Preservation Officer terminates 
    consultation, the Agency Official and the Council may execute a 
    Memorandum of Agreement without the State Historic Preservation 
    Officer's involvement or either may terminate consultation.
    
    [[Page 48589]]
    
        (3) If the Council terminates consultation, the Council shall 
    notify the Agency Official, the State Historic Preservation Officer, 
    other consulting parties, and the interested public of the termination 
    and comment under Sec. 800.7(b).
        (b) Comments by the Council. (1) Preparation. The Council shall 
    prepare its comments with an adequate opportunity for the Agency 
    Official, the State Historic Preservation Officer, other consulting 
    parties, and the public to provide their views. Upon request of the 
    Council, the Agency Official shall provide additional existing 
    information concerning the undertaking and assist the Council in 
    arranging an onsite inspection and an opportunity for public 
    participation.
        (2) Timing. The Council shall transmit its comments within 45 days 
    of receipt of a request under Sec. 800.7(a)(1) or termination by the 
    Council under Sec. 800.7(a)(3), unless otherwise agreed to by the 
    Agency Official.
        (3) Transmittal. The Council shall provide its comments to the head 
    of the agency requesting comment with copies to the Agency Official, 
    the State Historic Preservation Officer, other consulting parties, the 
    interested public, and others as appropriate.
        (4) Response to Council comment. The head of the agency shall 
    consider the Council's comments in reaching a final decision on the 
    undertaking. The head of the agency may not delegate his or her 
    responsibilities pursuant to this paragraph. The head of the agency 
    shall document the decision by:
        (i) Preparing a record of the decision and the rationale for the 
    decision, evidencing consideration of the Council's comments and 
    providing it to the Council prior to approving the undertaking;
        (ii) Providing a copy of the record of decision to the State 
    Historic Preservation Officer, other consulting parties, and the 
    interested public; and
        (iii) Notifying the public and making the record available for 
    public inspection.
    
    
    Sec. 800.8  Coordination with the National Environmental Policy Act.
    
        (a) General coordination. Federal agencies are encouraged to 
    coordinate compliance with section 106 of the Act and the procedures in 
    this part with any steps taken to meet the requirements of the National 
    Environmental Policy Act (42 U.S.C. 4231 et seq.)(NEPA).
        (b) Actions categorically excluded under NEPA. If a project, 
    activity or program is categorically excluded from NEPA review under an 
    agency's NEPA procedures, the Agency Official shall determine if it 
    qualifies as an undertaking requiring review under section 106 of the 
    Act pursuant to Sec. 800.3(a). If so, the Agency Official shall comply 
    with the procedures in this subpart.
        (c) Use of the NEPA process for section 106 of the Act purposes. An 
    Agency Official may use the process and documentation for the 
    preparation of an Environmental Impact Statement or an Environmental 
    Assessment (EA) to comply with section 106 of the Act in lieu of the 
    procedures set forth in Secs. 800.3 through 800.6 if the following 
    conditions are met.
        (1) Preparation of the Draft Environmental Impact Statement (DEIS) 
    or EA meets the following standards:
        (i) The Agency Official has notified the Council, the State 
    Historic Preservation Officer and the interested public during the 
    preparation of the DEIS or EA that this section is being used to comply 
    with section 106 of the Act;
        (ii) Historic properties are identified and effects of the 
    undertaking are evaluated in a manner consistent with the criteria and 
    procedures of Secs. 800.3 through 800.5 and the documentation standards 
    of Sec. 800.11;
        (iii) The Agency Official has consulted with the State Historic 
    Preservation Officer, other consulting parties, and the Council where 
    appropriate as required by Secs. 800.3 through 800.6 and Sec. 800.12 
    when identifying historic properties, evaluating potential adverse 
    effects, and considering measures to avoid or minimize adverse effects;
        (iv) The Agency Official has involved the interested public and the 
    public in accordance with the agency's NEPA procedures; and
        (v) Alternatives and measures that would avoid or minimize any 
    adverse effects of the undertaking on historic properties are described 
    in the DEIS or EA.
        (2) The Agency Official shall submit the DEIS or EA to the Council, 
    the State Historic Preservation Officer, other consulting parties, and 
    the interested public when circulating it for public comment. The 
    Agency Official shall indicate that the DEIS or EA is intended to meet 
    the requirements of section 106 of the Act under this section.
        (3) If within the time allowed for public comment on the DEIS or EA 
    the Council objects to how the Agency Official has taken into account 
    the effects of the undertaking on historic properties, the Agency 
    Official shall comply with Sec. 800.6(b)(2). If the Agency Official 
    receives an objection from the State Historic Preservation Officer, a 
    consulting party, or a member of the interested public within the time 
    allowed for public comment on the document, the Agency Official shall 
    provide the objection to the Council. Within 30 days, the Council shall 
    notify the Agency Official either that it agrees with the objection, in 
    which case the Agency Official shall comply with Sec. 800.6(b)(2), or 
    that it disagrees with the objection, in which case the Agency Official 
    shall continue to follow this section.
        (4) The Agency Official shall incorporate into the Final 
    Environmental Impact Statement (FEIS) or final document resulting from 
    the EA measures to avoid or minimize adverse effects on historic 
    properties. Adoption of the proposed measures through a commitment, 
    binding on the agency or the applicant for Federal assistance or 
    permission, as appropriate, to carry them out and embodied in a Record 
    of Decision (ROD) following or accompanying the FEIS or final document 
    resulting from the EA satisfies the Agency Official's responsibilities 
    under section 106 of the Act and the procedures in this part.
        (5) If the undertaking is subsequently modified in a manner that 
    alters the treatment of effects on historic properties or if the Agency 
    Official fails to carry out the measures to avoid or minimize adverse 
    effects as specified in the ROD, the Agency Official shall notify the 
    State Historic Preservation Officer, any other consulting party, and 
    the interested public and consult with the Council. The Council may 
    either require the Agency Official to follow Sec. 800.6 or provide 
    comments to the Agency Official within 30 days of the request for 
    consultation.
    
    
    Sec. 800.9  Council review of section 106 of the Act compliance.
    
        (a) Assessment of Agency Official findings for individual 
    undertakings. (1) Basis for request. If the Council has not 
    participated in the review of an undertaking under the procedures in 
    this subpart, a State Historic Preservation Officer, a consulting party 
    or a member of the interested public that has participated in the 
    section 106 of the Act process may request the Council to assess 
    whether an Agency Official has complied with the procedures in this 
    subpart when making a determination whether a property is eligible for 
    the National Register under Sec. 800.4(c)(2), a finding that there are 
    no historic properties present or affected under Sec. 800.4(d), or a 
    finding of no adverse effect or resolution by standard treatment under 
    Sec. 800.5(c). The request shall be in writing, state specific reasons
    
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    why the finding is not consistent with the provisions of the procedures 
    in this subpart and include such documentation as the requestor may 
    have available to support the request.
        (2) Timing. The request must be made prior to the approval of the 
    expenditure of funds or the issuance of any license, permit or other 
    approval by the Agency Official.
        (3) Council review of the finding. (i) The Council shall decide 
    within 10 days of receipt of the request whether it states reasons 
    that, if true, would warrant the Council determining that the finding 
    was inconsistent with the procedures in this subpart.
        (ii) If the Council decides that the request states reasons which 
    would warrant the Council determining that the finding was inconsistent 
    with the procedures in this subpart, the Council shall review the 
    finding on its merits. The Council shall notify the Agency Official, 
    provide a copy of the request and any accompanying supporting 
    documentation and invite the views of the Agency Official on the merits 
    of the request. The Council shall complete its assessment of the 
    finding within 30 days of notifying the Agency Official and may request 
    the Agency Official to refrain from taking final action on the 
    undertaking during that period. The Council shall provide its views to 
    the requestor, the Agency Official, the State Historic Preservation 
    Officer, consulting parties and other members of the interested public, 
    as appropriate.
        (iii) If the Council decides that the request does not state 
    reasons that would warrant the Council determining that the finding was 
    inconsistent with these procedures, the Council shall decline to assess 
    the finding and notify the requestor.
        (4) Questions of eligibility. When the finding concerns the 
    eligibility of a property for the National Register, the Council shall 
    refer the matter to the Secretary.
        (b) Agency foreclosure of the Council's opportunity to comment. 
    Where an Agency Official has failed to complete the requirements of 
    section 106 of the Act in accordance with the procedures in this part 
    prior to the approval of an undertaking, the Council's opportunity to 
    comment may be foreclosed. The Council may review a case to determine 
    whether a foreclosure has occurred. The Council shall notify the Agency 
    Official and allow 30 days for the Agency Official to provide 
    information as to whether foreclosure has occurred. If the Council 
    determines foreclosure has occurred, the Chairman of the Council shall 
    transmit the determination to the head of the agency.
        (c) Intentional adverse effects by applicants. (1) Agency 
    responsibility. Section 110(k) of the Act prohibits a Federal agency 
    from granting a loan, loan guarantee, permit, license or other 
    assistance to an applicant who, with intent to avoid the requirements 
    of section 106 of the Act, has intentionally significantly adversely 
    affected a historic property to which the grant would relate, or having 
    legal power to prevent it, has allowed such significant adverse effect 
    to occur, unless the agency, after consultation with the Council, 
    determines that circumstances justify granting such assistance despite 
    the adverse effect created or permitted by the applicant. Guidance 
    issued by the Secretary pursuant to Section 110 of the Act governs its 
    implementation.
        (2) Compliance with section 106 of the Act. If an Agency Official, 
    after consulting with the Council, determines to grant the assistance, 
    the Agency Official shall comply with the procedures in this subpart to 
    take into account the effects of the undertaking on any other historic 
    properties.
        (d) Evaluation of Section 106 operations. The Council shall 
    evaluate the operation of the Section 106 process by periodic reviews 
    of how participants have fulfilled their legal responsibilities and how 
    effectively the outcomes reached advance the purposes of the Act.
        (1) Information from participants. Section 203 of the Act 
    authorizes the Council to obtain information from Federal agencies 
    necessary to conduct oversight and evaluation of the Section 106 
    process. The Agency Official shall maintain documentation of actions 
    taken to comply with section 106 of the Act that meet the standards of 
    Sec. 800.11 and applicable agency procedures. The Agency Official shall 
    make such documentation available to the Council upon request. The 
    Council may request available information and documentation from other 
    participants in the Section 106 process.
        (2) Peer review. The Council may use professional peer review to 
    assist in any evaluation.
        (3) Improving the operation of section 106 of the Act. Based upon 
    any evaluation of the Section 106 process, the Council may make 
    recommendations to participants, the heads of Federal agencies, and the 
    Secretary of actions to improve the efficiency and effectiveness of the 
    process. Where the Council determines that an Agency Official, a State 
    Historic Preservation Officer or a Tribal Preservation Officer who has 
    assumed the role of the State Historic Preservation Officer has failed 
    to properly carry out the responsibilities assigned under the 
    procedures in this part, the Council may participate in individual case 
    reviews in a manner and for a period that it determines is necessary to 
    improve performance or correct deficiencies.
    
    
    Sec. 800.10  Special requirements for protecting National Historic 
    Landmarks.
    
        (a) Agency official's responsibilities. Section 110(f) of the Act 
    requires that the Agency Official, to the maximum extent possible, 
    undertake such planning and actions as may be necessary to minimize 
    harm to any National Historic Landmark that may be directly and 
    adversely affected by an undertaking. When commenting on such 
    undertakings, the Council shall use the process set forth in 
    Secs. 800.6 through 800.7 and give special consideration to protecting 
    National Historic Landmarks in accordance with this section.
        (b) Resolution of adverse effects. Any consultation to resolve 
    adverse effects conducted under Sec. 800.6 shall include the Council, 
    if the Council chooses to participate.
        (c) Involvement of the Secretary. The Agency Official shall notify 
    the Secretary of consultations involving National Historic Landmarks 
    and invite the Secretary to participate in the consultation. The 
    Council may request a report from the Secretary under Section 213 of 
    the Act to assist in the consultation.
        (d) Report of outcome. The Council shall report the outcome of the 
    Section 106 process, including its comments or any Memoranda of 
    Agreement, to the Secretary and the head of the agency responsible for 
    the undertaking.
    
    
    Sec. 800.11  Documentation standards.
    
        (a) Adequacy of documentation. The Agency Official shall ensure 
    that any determination, finding or agreement under the procedures in 
    this subpart is supported by sufficient documentation to enable 
    reviewing parties to understand its factual and logical basis. If the 
    Council, or the State Historic Preservation Officer in those situations 
    where the Council is not involved, determines the applicable 
    documentation standards are not met, the time period specified in the 
    relevant section of this subpart shall be suspended until adequate 
    documentation is submitted.
        (b) Format. The Agency Official may use documentation prepared to 
    meet the needs of other authorities to fulfill the requirements of the 
    procedures in this subpart, provided that resulting
    
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    documentation meets the standards of this section.
        (c) Confidentiality. Section 304 of the Act requires an Agency 
    Official to withhold from public disclosure information about the 
    location, character, or ownership of a historic property when 
    disclosure may cause a significant invasion of privacy, risk harm to 
    the historic resource, or impede the use of a traditional religious 
    site by practitioners.
        (d) Finding of no historic properties present or affected. 
    Documentation shall include:
        (1) A description of the undertaking and its area of potential 
    effects, including photographs, maps, and drawings, as necessary;
        (2) A description of the efforts used to identify historic 
    properties; and
        (3) The basis for determining that no historic properties are 
    present or affected.
        (e) Finding of no adverse effect or standard treatment of potential 
    adverse effects. Documentation shall include:
        (1) A description of the undertaking and its area of potential 
    effects, including photographs, maps, and drawings, as necessary;
        (2) A description of historic properties that may be affected by 
    the undertaking, including appropriate information on the nature of 
    their significance;
        (3) A description of the efforts used to identify historic 
    properties;
        (4) A description of why the criteria of adverse effect were found 
    inapplicable, or how potential adverse effects would be resolved; and
        (5) Any views provided by consulting parties, the interested public 
    and the public.
        (f) Finding of adverse effect. Documentation shall include:
        (1) A description of the undertaking and its area of potential 
    effects, including photographs, maps, and drawings, as necessary;
        (2) A description of the affected historic properties, with 
    information on the characteristics that qualify them for the National 
    Register; and
        (3) A description of the undertaking's adverse effects on historic 
    properties.
        (g) Memorandum of Agreement. When a memorandum is filed with the 
    Council , the documentation shall include an evaluation of any measures 
    considered to avoid or minimize the undertaking's adverse effects and a 
    summary of the views of consulting parties, the interested public and 
    the public.
        (h) Requests for comment when consultation is terminated. 
    Documentation shall include that specified in paragraph (f) of this 
    section and:
        (1) A description and evaluation of any alternatives or mitigation 
    measures that the Agency Official proposes to resolve the undertaking's 
    adverse effects;
        (2) A description of any reasonable alternatives or mitigation 
    measures that were considered but not chosen, and the reasons for their 
    rejection;
        (3) The planning schedule for the undertaking; and
        (4) Copies or summaries of any views submitted to the Agency 
    Official concerning the effects of the undertaking on historic 
    properties and alternatives to reduce or avoid those effects.
    
    
    Sec. 800.12  Consultation with Indian tribes and Native Hawaiian 
    organizations.
    
        (a) Objectives. Consultation shall be designed to:
        (1) Provide the Indian tribe or Native Hawaiian organization a 
    reasonable opportunity to identify its concerns about historic 
    properties, advise on the identification of historic properties, 
    including associated traditional religious and cultural importance, and 
    articulate its views on the undertaking's effects on such properties.
        (2) Involve designated representatives of the Indian tribe's or 
    Native Hawaiian organization's governing body and those traditional 
    cultural authorities and other tribal or organizational members 
    identified by the designated representatives.
        (3) Commence early in the planning process, in order to identify 
    relevant preservation issues and resolve concerns about the 
    confidentiality of information on historic properties and to allow 
    adequate time for discussion of relevant preservation issues. Upon 
    request, the Agency Official, after consultation with the Secretary, 
    shall withhold information about historic properties in accordance with 
    section 304 of the Act.
        (b) Undertakings on tribal lands. Consultation with Indian tribes 
    on tribal lands requires special consideration, as set forth in this 
    paragraph, of the sovereignty of Indian tribes over such lands. Where 
    an Indian tribe has not assumed the responsibilities of the State 
    Historic Preservation Officer under section 101(d)(2) of the Act, the 
    Agency Official shall involve the Indian tribe with jurisdiction over 
    the tribal lands as a consulting party in accordance with this 
    subsection.
        (1) Identification of historic properties. When carrying out the 
    provisions of Sec. 800.4, the Agency Official shall consult with the 
    Indian tribe when determining the area of potential effects, locating 
    historic properties and evaluating the historic significance of 
    identified properties. The Indian tribe shall be consulted when 
    reaching any determination of eligibility under Sec. 800.4(c)(2) and 
    its timely objection to an Agency Official's determination shall 
    require the Agency Official to obtain a determination of eligibility 
    from the Secretary pursuant to 36 CFR part 63. The Agency Official 
    shall provide documentation of any finding that there are no historic 
    properties present or affected to the Indian tribe. If the Indian tribe 
    objects within 15 days of receipt of an adequately documented finding, 
    the Agency Official shall consider that historic properties are 
    affected by the undertaking.
        (2) Assessment of adverse effects. When carrying out the provisions 
    of Sec. 800.5, the Agency Official shall consult with the Indian tribe 
    when applying the criteria of adverse effect to historic properties 
    within the area of potential effects, making findings of avoidance of 
    adverse effect and determining satisfactory resolution of adverse 
    effects. The Agency Official shall provide a copy of any findings of no 
    adverse effect or that adverse effects have been satisfactorily 
    resolved by a standard treatment to the Indian tribe when submitting 
    them to the State Historic Preservation Officer for review. If the 
    Indian tribe objects to the finding within 30 days of receipt and 
    specifies the reasons for disagreeing, the effect shall be considered 
    adverse, provided that the Agency Official may request the Council to 
    review the disagreement and proceed in accordance with the Council's 
    opinion as to whether the effect is adverse.
        (3) Resolution of adverse effects. When carrying out the 
    responsibilities of Sec. 800.6, the Agency Official shall consult with 
    the Indian tribe along with the State Historic Preservation Officer 
    when determining participants in the consultation and resolving adverse 
    effects. The Indian tribe shall be a signatory to any agreement reached 
    under Sec. 800.6.
        (4) Failure to resolve adverse effects. When an Agency Official 
    follows the provisions of Sec. 800.7, the Indian tribe shall have the 
    same opportunities to terminate consultation and participate in the 
    Council comment process as the State Historic Preservation Officer.
        (c) Undertakings not on tribal lands. Where the Agency Official has 
    identified an Indian tribe or Native Hawaiian organization that 
    attaches religious or cultural significance to historic properties 
    within the area of potential effects under Sec. 800.3(e), including one 
    that does not reside in the
    
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    vicinity of the undertaking, the Agency Official shall involve them in 
    accordance with this paragraph.
        (1) Identification of historic properties. When carrying out the 
    provisions of Sec. 800.4, the Agency Official shall consult with the 
    Indian tribe or Native Hawaiian organization when determining the area 
    of potential effects, locating historic properties that may possess 
    religious or cultural significance and applying the National Register 
    Criteria to such properties when identified.
        (2) Assessment of adverse effects. When carrying out the provisions 
    of Sec. 800.5, the Agency Official shall consult with the Indian tribe 
    or Native Hawaiian organization when applying the criteria of adverse 
    effect to historic properties that may possess religious or cultural 
    significance within the area of potential effects, making findings of 
    avoidance of adverse effect to such properties and determining 
    satisfactory treatment of adverse effects to such properties.
        (3) Resolution of adverse effects. When carrying out the 
    responsibilities of Sec. 800.6, the Agency Official shall consult with 
    the Indian tribe or Native Hawaiian organization when determining 
    Council involvement and resolving adverse effects with or without the 
    Council. The governing body of the Indian tribe or Native Hawaiian 
    organization shall be invited to concur in any Memorandum of Agreement 
    reached when it concerns properties that possess religious or cultural 
    significance.
        (4) Failure to resolve adverse effects. When the Agency Official 
    follows the provisions of Sec. 800.7, the Indian tribe or Native 
    Hawaiian organization shall have the same opportunities to provide 
    views and receive information in the Council comment process as the 
    State Historic Preservation Officer.
        (d) Emergency situations and post-review discoveries. (1) Tribal 
    lands. When an agency complies with the provisions of Sec. 800.13 or 
    Sec. 800.14 for an undertaking on tribal lands, the Indian tribe shall 
    have the same opportunities to participate as the State Historic 
    Preservation Officer. The Agency Official shall also coordinate 
    requirements under Sec. 800.13 or Sec. 800.14 with any applicable 
    actions taken to meet the requirements of the Native American Graves 
    Protection and Repatriation Act.
        (2) Non-tribal lands. Where the Agency Official has identified an 
    Indian tribe or Native Hawaiian organization that attaches religious or 
    cultural significance to historic properties within the area of 
    potential effects under Sec. 800.3(e) and subsequently complies with 
    the provisions of Sec. 800.13 or Sec. 800.14, the Agency Official shall 
    consult with them in carrying out the provisions of those sections.
    
    
    Sec. 800.13  Emergency situations.
    
        (a) Agency procedures. The Agency Official, in consultation with 
    the appropriate State Historic Preservation Officer or Officers and the 
    Council, is encouraged to develop procedures for taking historic 
    properties into account during operations which respond to a disaster 
    or emergency declared by the President, the Agency Official or the 
    governor of a State or which respond to other immediate threats to life 
    or property. If approved by the Council, the procedures shall govern 
    the agency's historic preservation responsibilities during any disaster 
    or emergency in lieu of Secs. 800.3 through 800.7.
        (b) Alternatives to agency procedures. In the event an Agency 
    Official proposes an emergency undertaking as an essential and 
    immediate response to a disaster or emergency declared by the 
    President, the Agency Official or the governor of a State, and the 
    agency has not developed procedures pursuant to Sec. 800.13(a), the 
    Agency Official may comply with section 106 of the Act by:
        (1) Following a programmatic agreement developed pursuant to 
    Sec. 800.15(b) that contains specific provisions for dealing with 
    historic properties in emergency situations; or
        (2) Notifying the Council and the appropriate State Historic 
    Preservation Officer prior to the undertaking and affording them an 
    opportunity to comment within seven days of notification. If the Agency 
    Official determines that circumstances do not permit seven days for 
    comment, the Agency Official shall notify the Council and the State 
    Historic Preservation Officer and invite any comments.
        (c) Local governments responsible for Section 106 compliance. When 
    a local government is statutorily delegated responsibility for Section 
    106 compliance, Sec. 800.13 (a) and (b) also apply to an imminent 
    threat to public health or safety as a result of a natural disaster or 
    emergency declared by a local government's chief executive officer or 
    legislative body, provided that if the Council or State Historic 
    Preservation Officer objects within seven days, the Agency Official 
    shall comply with Secs. 800.3 through 800.7.
        (d) Applicability. This section applies only to undertakings that 
    will be implemented within 30 days after the disaster or emergency has 
    been formally declared by the appropriate authority. An agency may 
    request an extension of the period of applicability from the Council 
    prior to the expiration of the 30 days. Immediate rescue and salvage 
    operations conducted to preserve life or property are exempt from the 
    provisions of section 106 of the Act and this subpart.
    
    
    Sec. 800.14  Post-review discoveries.
    
        (a) Planning for discoveries. When the Agency Official's 
    identification efforts in accordance with Sec. 800.4 indicate that 
    historic properties are likely to be discovered during implementation 
    of an undertaking, the Agency Official shall include in any finding of 
    no adverse effect, standard treatment of potential adverse effects or 
    Memorandum of Agreement a process to resolve any adverse effects upon 
    such properties. Actions in conformance with the process satisfy the 
    Agency Official's responsibilities under section 106 of the Act and 
    this subpart.
        (b) Unplanned for discoveries. If historic properties are 
    discovered or unanticipated effects on historic properties found after 
    the Agency Official has completed the Section 106 process without 
    establishing a process under Sec. 800.14(a), the Agency Official shall 
    make reasonable efforts to avoid or minimize adverse effects to such 
    properties and:
        (1) If the Agency Official has not approved the undertaking, 
    consult to resolve adverse effects pursuant to Sec. 800.6;
        (2) If the Agency Official determines in consultation with the 
    State Historic Preservation Officer that the affected property is 
    significant solely for its scientific, prehistoric, historic or 
    archeological data, comply with the Archeological and Historic 
    Preservation Act, 16 U.S.C. 469 (a)-(c) instead of the procedures in 
    this part, provided that the Agency Official shall consult with the 
    State Historic Preservation Officer on the actions proposed and provide 
    the Council with a report on the actions after they are completed; or
        (3) If the Agency Official has approved the undertaking, the Agency 
    Official shall:
        (i) Determine actions that the Agency Official can take to resolve 
    adverse effects;
        (ii) Notify the State Historic Preservation Officer and the Council 
    within 48 hours of the discovery;
        (iii) Describe the actions proposed to resolve the adverse effects;
        (iv) Take into account any recommendations provided by the Council 
    and the State Historic Preservation Officer within 48 hours of the 
    notification.
        (v) Carry out appropriate actions; and
    
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        (vi) Provide the Council, the State Historic Preservation Officer 
    and the interested public a report of the actions when completed.
        (c) Eligibility of properties. When a newly discovered historic 
    property has not previously been included in or determined eligible for 
    the National Register, the Agency Official, in consultation with the 
    State Historic Preservation officer, may assume the property to be 
    eligible for purposes of section 106 of the Act.
    
    Subpart C--Program Alternatives
    
    
    Sec. 800.15  Federal agency program alternatives.
    
        (a) Alternate procedures. A Federal agency may develop procedures 
    to implement Section 106 and substitute them for the comparable 
    provisions of subpart B if they are found consistent with the Council's 
    regulations in accordance with section 110(a)(2)(E) of the Act.
        (1) Development of procedures. The Federal agency shall consult 
    with the Council in the development of alternate procedures and publish 
    notice of the availability of proposed alternate procedures in the 
    Federal Register.
        (2) Council review. The Federal agency shall submit the final 
    alternate procedure to the Council for review.
        (i) If the Council finds the regulations to be consistent with this 
    part, it shall notify the Federal agency and the Federal agency may 
    adopt them as alternate procedures.
        (ii) If the Council does not find the procedures consistent, the 
    Council shall request the Secretary to make a final determination as to 
    consistency. If the Secretary determines the procedures to be 
    consistent, the Federal agency may adopt them as alternate procedures.
        (3) Notice. The Federal agency shall publish notice of final 
    alternate procedures in the Federal Register.
        (4) Legal effect. Alternate procedures adopted pursuant to this 
    section substitute for the Council's regulations for the purposes of 
    the agency's compliance with section 106 of the Act, except that, where 
    an Indian tribe has entered into an agreement with the Council to 
    substitute tribal historic preservation regulations for the Council's 
    procedures, the agency shall follow those regulations in lieu of the 
    agency's procedures regarding undertakings on tribal lands.
        (b) Programmatic Agreements. The Council and the Agency Official 
    may negotiate a Programmatic Agreement to govern the implementation of 
    a particular program or certain complex project situations that justify 
    departure from the normal Section 106 process.
        (1) Programmatic Agreements for agency programs. (i) The 
    consultation shall involve State Historic Preservation Officers or the 
    National Conference of State Historic Preservation Officers, Indian 
    tribes and Native Hawaiian organizations, other Federal agencies, and 
    other members of the interested public, as appropriate.
        (ii) The Agency Official shall arrange for public participation 
    appropriate to the subject matter and the scope of the program.
        (iii) The Programmatic Agreement shall take effect when executed by 
    the Council and the Agency Official. The President of the National 
    Conference of State Historic Preservation Officers shall be invited to 
    sign any agreement when the Conference has participated in the 
    consultation developing it. Compliance with the procedures established 
    by an approved Programmatic Agreement satisfies the agency's Section 
    106 responsibilities for all individual undertakings covered by the 
    agreement until it expires or is terminated by the agency or the 
    Council.
        (iv) The Agency Official shall publish notice of an approved 
    Programmatic Agreement in the Federal Register and make any agency 
    procedures implementing the agreement readily available to the Council, 
    State Historic Preservation Officers, and the public.
        (v) If the Council determines that the terms of a Programmatic 
    Agreement are not being carried out, or if such an agreement is 
    terminated, the Agency Official shall comply with subpart B with regard 
    to individual undertakings covered by the agreement.
        (2) Programmatic Agreements for complex or multiple undertakings. 
    (i) A Programmatic Agreement is a Memorandum of Agreement that 
    establishes a process for dealing with the potential adverse effects of 
    complex projects or multiple undertakings carried out over an extended 
    period of time. A Programmatic Agreement shall be used:
        (A) When effects on historic properties are similar and repetitive 
    or are multi-State or regional in scope;
        (B) When effects on historic properties cannot be fully determined 
    prior to approval;
        (C) When nonfederal parties are delegated major decisionmaking 
    responsibilities; or
        (D) Where routine management activities are undertaken at Federal 
    installations, facilities, or other land-management units.
        (ii) Such a Programmatic Agreement shall be developed in the same 
    manner as other Memoranda of Agreement under Sec. 800.6, provided that 
    if consultation pertains to an activity involving multiple undertakings 
    and the parties fail to reach agreement, then the Agency Official shall 
    comply with the provisions of subpart B of this part for each 
    individual undertaking.
        (c) Exempted categories. (1) Criteria for establishing. An Agency 
    Official may propose a program or category of agency undertakings that 
    may be exempted from review under the provisions of subpart B, if the 
    program or category meets the following criteria:
        (i) The actions within the program or category would otherwise 
    qualify as ``undertakings'' as defined in Sec. 800.17;
        (ii) The potential effects of the undertakings within the program 
    or category upon historic properties are foreseeable and not likely to 
    be adverse; and
        (iii) Exemption of the program or category is consistent with the 
    purposes of the Act.
        (2) Council review of proposed exemptions. The Council shall review 
    a request for an exemption that is supported by documentation 
    describing the program or category for which the exemption is sought 
    and demonstrating that the criteria of Sec. 800.15(c)(1) have been met. 
    Unless it requests further information, the Council shall approve or 
    reject the proposed exemption within 30 days of receipt. The Council 
    decision shall be based on whether the exemption is consistent with the 
    purposes of the Act, taking into consideration the magnitude of the 
    exempted undertaking or program and the likelihood of impairment of 
    historic properties in accordance with section 214 of the Act.
        (3) Legal consequences. Any undertaking that falls within the 
    exempted program or category approved by the Council shall require no 
    further review pursuant to subpart B, unless the Agency Official or the 
    Council determines that there are circumstances under which the 
    normally excluded undertaking should be reviewed under subpart B of 
    this part.
        (d) Standard treatments. (1) Establishment. The Council may 
    establish standard methods for the treatment of a category of historic 
    properties or a category of effects on historic properties to satisfy 
    the requirements of subpart B of this part. The Council shall specify 
    such treatments, conditions for their application and any procedural 
    modifications attendant to their use in a notice published in the 
    Federal Register.
        (2) Legal consequence. An Agency Official may elect to follow a 
    standard treatment to meet Section 106
    
    [[Page 48594]]
    
    responsibilities for a qualifying undertaking in accordance with 
    Sec. 800.5.
        (e) Program comments. An Agency Official may request the Council to 
    comment on a category of routine or repetitive undertakings in lieu of 
    conducting individual reviews under Secs. 800.4 through 800.7. The 
    Agency Official shall identify the category of undertakings, specify 
    the likely effects on historic properties, specify the steps the Agency 
    Official will take to ensure that the effects are taken into account 
    and the time period for which the comment is requested. Unless the 
    Council requests additional documentation or notifies the Agency 
    Official that it will decline to comment, the Council shall comment to 
    the Agency Official within 45 days of the request. The Agency Official 
    shall take into account the comments of the Council in carrying out the 
    undertakings within the category and provide appropriate notice of the 
    Council's comments and the Agency Official's action in response. If the 
    Council objects to the proposed treatment or declines to comment, the 
    Agency Official shall continue to comply with the requirements of 
    Secs. 800.4 through 800.7 for the individual undertakings. The Council 
    may provide program comments at its own initiative.
    
    
    Sec. 800.16  State, Tribal and Local Program Alternatives. (Reserved)
    
    
    Sec. 800.17  Definitions.
    
        Act means the National Historic Preservation Act of 1966 (16 U.S.C. 
    470-470w-6).
        Agency means agency as defined in 5 U.S.C. 551.
        Approval of the expenditure of funds means any final agency 
    decision authorizing or permitting the expenditure of Federal funds or 
    financial assistance on an undertaking, including any agency decision 
    that may be subject to an administrative appeal or rehearing procedure.
        Area of potential effects means the geographic area or areas within 
    which an undertaking could cause adverse effects on historic 
    properties.
        Comment means the findings and recommendations of the Council 
    formally provided in writing to the head of a Federal agency under 
    section 106 of the Act.
        Consultation means the process of seeking and considering the views 
    of other participants in a manner appropriate to the particular 
    participants and the specific steps in the Section 106 process.
        Council means the Advisory Council on Historic Preservation or a 
    Council member or employee designated to act for the Council.
        Effect means alteration to the characteristics of a historic 
    property that qualified it for inclusion in or eligibility for the 
    National Register.
        Head of the agency means the chief official of the Federal agency 
    responsible for all aspects of the agency's actions. If a State, local 
    or tribal government has been delegated responsibility for Section 106 
    compliance, the head of that unit of government shall be considered the 
    head of the agency.
        Historic property means any prehistoric or historic district, site, 
    building, structure, or object included in, or eligible for inclusion 
    in, the National Register of Historic Places maintained by the 
    Secretary of the Interior. This term includes artifacts, records, and 
    remains that are related to and located within such properties. The 
    term includes properties of traditional religious and cultural 
    importance to an Indian tribe or Native Hawaiian organization that meet 
    the National Register criteria. The term ``eligible for inclusion in 
    the National Register'' includes both properties formally determined as 
    such in accordance with regulations of the Secretary of the Interior 
    and all other properties that meet the National Register criteria.
        Indian tribe means an Indian tribe, band, nation, or other 
    organized group or community, including a Native village, Regional 
    Corporation or Village Corporation, as those terms are defined in 
    section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), 
    which is recognized as eligible for the special programs and services 
    provided by the United States to Indians because of their status as 
    Indians.
        Local government means a city, county, parish, township, 
    municipality, borough, or other general purpose political subdivision 
    of a State.
        Memorandum of Agreement means the document that records the terms 
    and conditions agreed upon to resolve the adverse effects of an 
    undertaking upon historic properties.
        National Historic Landmark means a historic property that the 
    Secretary of the Interior has designated a National Historic Landmark.
        National Register means the National Register of Historic Places 
    maintained by the Secretary of the Interior.
        National Register Criteria means the criteria established by the 
    Secretary of the Interior for use in evaluating the eligibility of 
    properties for the National Register (36 CFR part 60).
        Native Hawaiian organization means any organization which serves 
    and represents the interests of Native Hawaiians; has as a primary and 
    stated purpose the provision of services to Native Hawaiians; and has 
    demonstrated expertise in aspects of historic preservation that are 
    significant to Native Hawaiians. ``Native Hawaiian'' means any 
    individual who is a descendant of the aboriginal people who, prior to 
    1778, occupied and exercised sovereignty in the area that now 
    constitutes the State of Hawaii.
        Programmatic Agreement means a document that records the terms and 
    conditions agreed upon to resolve the potential adverse effects of a 
    Federal agency program or other situations in accordance with 
    Sec. 800.15.
        Secretary means the Secretary of the Interior acting through the 
    Director of the National Park Service except where otherwise specified.
        State Historic Preservation Officer means the official appointed or 
    designated pursuant to section 101(b)(1) of the Act to administer the 
    State historic preservation program or a representative designated to 
    act for the State Historic Preservation Officer.
        Traditional cultural authority means an individual or a group of 
    individuals in an Indian tribe, Native Hawaiian organization, or other 
    social or ethnic group who is recognized by members of the group as 
    knowledgeable in the group's traditional history, cultural practices 
    and living human values.
        Tribal lands means all lands within the exterior boundaries of any 
    Indian reservation and all dependent Indian communities.
        Tribal Preservation Officer means the tribal official appointed by 
    the tribe's chief governing authority or as designated by a tribal 
    ordinance or preservation program as provided for and approved under 
    the provisions of section 101 of the Act.
        Undertaking means a project, activity, or program funded in whole 
    or in part under the direct or indirect jurisdiction of a Federal 
    agency, including those carried out by or on behalf of a Federal 
    agency; those financed in whole or in part with Federal financial 
    assistance; those requiring a Federal permit, license or approval; and 
    those subject to State or local regulation administered pursuant to a 
    delegation or approval by a Federal agency.
    
    [FR Doc. 96-23532 Filed 9-12-96; 8:45 am]
    BILLING CODE 4310-10-P
    
    
    

Document Information

Published:
09/13/1996
Department:
Advisory Council on Historic Preservation
Entry Type:
Proposed Rule
Action:
Notice of proposed rulemaking.
Document Number:
96-23532
Dates:
Comments must be received on or before November 12, 1996. The Council will provide on request an additional 30 days for an Indian tribe to submit comments. A representative of the tribal government must file a request with the Council no later than November 12, 1996.
Pages:
48580-48594 (15 pages)
PDF File:
96-23532.pdf
CFR: (24)
36 CFR 800.15(a)
36 CFR 800.2(b)(2)
36 CFR 800.4(b)(1)
36 CFR 800.15(b)
36 CFR 800.5(c)
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